Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered January 22, 2008, which denied the petition to annul a determination of respondent Contract Dispute Resolution Board (CDRB) rejecting petitioners' claim for compensation for additional work under a contract with respondent Department of Transportation (DOT), affirmed, without costs.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Friedman, J.P., Sweeny, Nardelli, Catterson, DeGrasse, JJ.
Following competitive bidding, DOT awarded petitioner L & L a public works contract for removal of lead-based paint from the Queensboro Bridge. The contract requires L & L to construct a protective scaffolding platform above the bridge's roadways. The instant dispute stems from the parties' conflicting interpretations of a contract drawing on a document identified as "Sheet 26R," which consists of two drawings and a column of explanatory notes. The drawing of the main bridge typical cross section depicts the north and south "outer," "inner" and "upper" roadways of the bridge. Note 5 reads: "Minimum vertical clearance of 14 feet shall be maintained above all roadways." The only references to note 5 in the cross section drawing consist of two lines showing clearance on the south inner and upper roadways. However, the outer roadway is approximately 18 inches higher than the inner roadway. Nevertheless, the cross section drawing depicts the protective platform as a straight horizontal plane notwithstanding the difference in elevation. Based on the elevation differential, L & L's platform subcontractor, petitioner Odyssey, submitted to DOT a proposed shop drawing placing the protective platform at 10 feet 6 inches, instead of 14 feet, above the outer roadway surface. DOT's engineering consultant rejected the shop drawing and directed Odyssey to amend it to conform to the 14-foot vertical clearance requirements set forth under Note 5. This amendment required L & L to incur what it claims to be additional costs stemming from the necessary relocation of existing power cables, among other things.
Based upon the foregoing, L & L filed requests for the payment of its purported additional costs with DOT and the Comptroller of the City of New York. Upon the denial of its requests, L & L petitioned CDRB for a review, pointing out as follows: [T]he elevation of the inner roadway and the outer roadway are significantly different. If the elevation of the platform is maintained and the elevation of the roadway is different, it is impossible to maintain the same clearance. This is an ambiguity in the contract documents. At oral argument, L & L urged CDRB to construe the ambiguity against DOT, the drafter of the contract. With one dissent, the CDRB panel denied L & L's petition on the ground that even though the drawing on Sheet 26R was ambiguous, L & L failed in its responsibility to request clarification of the ambiguity prior to bidding. In this regard, paragraph 7(A) of the pre-bid information package required bidders to examine the contract documents and make written requests for "an interpretation or correction of every patent ambiguity, inconsistency or error therein which should have been discovered by a reasonably prudent bidder."
The instant Article 78 proceeding is brought on the ground that CDRB's determination was arbitrary and capricious. Petitioners allege that CDRB's decision disregarded the contract documents by requiring petitioners to discover and seek clarification of a latent ambiguity. Supreme Court dismissed the petition, finding the ambiguity on Sheet 26R to be patent. We affirm for the following reasons.
Note 5, which textually requires the 14-foot vertical clearance above all roadways, is referenced in the drawing only with respect to the south inner and upper roadways. The issue that divides the parties could have been obviated if the clearance requirement had been limited to "these roadways," "this roadway" or even "roadway," instead of "all roadways." Accordingly, there is a rational basis for CDRB's determination that the drawing on Sheet 26R is ambiguous. Because the record contains no expert opinion on the subject, we find no basis for our dissenting colleague's conclusion that "there appears to be no engineering ambiguity in the plan attendant to the contract." The dissent also posits that an engineer, the intended reader of the contract, would reasonably conclude that the minimum 14-foot clearance is not required on the outer roadway. As noted above, DOT's engineering consultant rejected this contention in a letter from a professional engineer, stating that note 5 is general and applies to all roadways. As the record contains no evidence of a contrary engineering opinion, we cannot presume that any other engineer would have reached a different conclusion.
According to Black's Law Dictionary, a patent ambiguity is one that appears on the face of a document and arises from the language itself. A latent ambiguity does not readily appear in the language of a document, but instead arises from a collateral matter when the document's terms are applied or executed (see id.). The ambiguity here is patent because its source is note 5's textual reference to "all roadways," in contrast to the apparent indication on the drawing that note 5 applies only to the south inner and upper roadways. All concur except Nardelli and Catterson, JJ. who dissent in a memorandum by Catterson, J. as follows:
CATTERSON, J. (dissenting)
The disputed notations of the contract scale plan drawing in question are unambiguous in the eyes of its intended reader, an engineer. Furthermore, the use of a scale rule when viewing those scale plan drawings establishes that they are unambiguous and that petitioners correctly interpreted them. Hence, I believe the agency's decision was arbitrary and capricious, and should be annulled.
This action arises out of an article 78 petition in which petitioners seek to annul a determination by New York City's Contract Dispute Resolution Board (hereinafter referred to as "CDRB") that the contract at issue was ambiguous, that under the terms of the contract the ambiguity was required to be resolved prior to bidding, and thus petitioners were not entitled to compensation for extra work. Subsequently, the Supreme Court confirmed the determination holding that CDRB's decision had a rational basis.
The contract at issue is for the removal of lead paint from the Queensboro (59th Street) Bridge. As part of the paint removal project, the respondent Department of Transportation (hereinafter referred to as "DOT") required that the petitioner L & L install a protective shielding platform above the roadways to protect vehicles and pedestrians on the bridge from falling debris, and to protect workers at the elevated level.
The record reflects that the bridge has ten lanes divided among three major sections: the upper roadways, the lower inner roadway, and the lower outer roadway. At issue in this case are the notations for the lower level where the two outer roadways run on the north and south side of the bridge (the north side having limited access solely to pedestrians and bicycles while the south side is limited to passenger cars), and where the inner roadway consists of four lanes. It is ...